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LIN 19/216

Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019

made under the Migration Regulations 1994 (the Regulations)

Compilation no. 2

 

Compilation date 1 July 2022

 

This compilation was prepared by the Department of Home Affairs on 1 July 2022 taking into account amendments up to Migration (Age exemption for subclass 186 (Employer Nomination Scheme) visa) Amendment Instrument (LIN 22/047) 2022.

Contents

Part 1 Preliminary 3

1 Name 3

3 Authority 3

5 Definitions 3

5A Coronavirus employment change 6

Part 2 Exemptions from skill, age and English language requirements 7

6 Subclass 186 visas 7

7 Subclass 187 visas—Temporary Residence Transition stream 7

8 Subclass 494 visas—Employer Sponsored stream 8

Part 3 Application and transitional provisions 9

9 Application of this instrument 9

10 Transitional provision—designated regional areas 9

11 Operation of Schedule 1 to the Migration (Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Amendment Instrument (LIN 20/189) 2020              9

 

Part 1 Preliminary

1 Name

 (1) This instrument is the Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019.

 (2) This instrument may be cited as LIN 19/216.

3 Authority

  This instrument is made under the following provisions of the Migration Regulations 1994:

(a) paragraph 186.221(b) of Schedule 2;

(b) paragraph 186.231(b) of Schedule 2;

(c) subclause 186.234(3) of Schedule 2;

(d) paragraph 187.221(b) of Schedule 2;

(e) paragraph 187.222(b) of Schedule 2;

(f) subclause 494.223(2) of Schedule 2;

(g) subclause 494.224(7) of Schedule 2;

(h) subclause 494.225(2) of Schedule 2.

5 Definitions

Note A number of expressions used in this instrument are defined in the Regulations, including the following:

(a) ANZSCO;

(b) designated regional area;

(c) earnings;

(d) the Act.

  In this instrument:

academic applicant, in relation to an application for a visa, means a person in relation to whom all of the following paragraphs apply:

(a) the nomination to which the visa application relates was made by an Australian university;

(b) the nominated position to which the visa application relates is for an academic classified as Level A, B, C, D or E;

(c) the nominated occupation to which the visa application relates, and its corresponding 6digit code, correspond to an occupation and its corresponding 6digit ANZSCO code specified in an item of the following table.

Exempt occupations

Item

Column 1

Occupation

Column 2

6digit ANZSCO code

1

faculty head

134411

2

university lecturer

242111

 

concession period means the concession period mentioned in subregulation 1.15N(1) of the Regulations.

coronavirus employment change: see section 5A.

high income threshold has the meaning given by section 333 of the Fair Work Act 2009.

legacy 457 worker, for a subclass 186 visa application, means a person who:

(a) held a subclass 457 visa on or after 18 April 2017; and

(b) was in Australia for at least 12 months between 1 February 2020 and 14 December 2021.

medical practitioner means an occupation that:

(a) is listed in ANZSCO; and

(b) has ANZSCO occupation minor group code 253 (medical practitioners).

nominated occupation, in relation to an application for a visa, means:

(a) if the visa application is for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa—the occupation that relates to the position to which the visa application relates; or

(b) if the visa application is for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa—the occupation nominated by the nomination to which the visa application relates.

nominated position, in relation to an application for a visa, means:

(a) if the visa application is for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa—the position to which the visa application relates; or

(b) if the visa application is for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa—the position that relates to the nominated occupation that relates to the visa application.

nomination, in relation to an application for a visa, means:

(a) if the visa application is for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa—an application under regulation 5.19 of the Regulations for approval of the nomination of the position to which the visa application relates; or

(b) if the visa application is for a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa—the nomination under paragraph 140GB(1)(b) of the Act identified in the visa application.


prorata threshold, in relation to a person’s earnings for a year, means the amount worked out using the following formula:

start formula start fraction high income threshold (as applying at the end of the year) divided by fifty-two end fraction multiplied by open bracket fifty-two minus the number of weeks in the year when the person's employment was affected by a coronavirus employment change close bracket end formula

regional medical practitioner applicant, in relation to an application for a visa, means a person in relation to whom all of the following paragraphs apply:

(a) the nominated position to which the visa application relates is located in a designated regional area;

(b) at all times during the 3 years ending immediately before the day the visa application was made, the person was employed as a medical practitioner;

(c) during those 3 years, the person spent at least 2 years (whether made up of a continuous period or 2 or more nonconsecutive periods) employed, as a medical practitioner, at a place or places that, at the time, were located in a designated regional area;

(d) at almost all times during those 3 years, the person held:

 (i) a Subclass 457 (Temporary Work (Skilled)) visa; or

 (ii) a Subclass 482 (Temporary Skill Shortage) visa.

Regulations means the Migration Regulations 1994.

science applicant, in relation to an application for a visa, means a person in relation to whom all of the following paragraphs apply:

(a) the person is any of the following relating to science:

 (i) researcher;

 (ii) scientist;

 (iii) technical specialist;

(b) the nomination to which the visa application relates was made by a science organisation;

(c) the ANZSCO skill level of the nominated occupation to which the visa application relates is level one or two.

science organisation means:

(a) a science agency of the Commonwealth or of a State or Territory; or

(b) an Australian university.

Subclass 444/461 worker, in relation to an application for a visa, means a person in relation to whom both of the following paragraphs apply:

(a) during the 3 years ending immediately before the day the visa application was made, the person spent at least 2 years (whether made up of a continuous period or 2 or more nonconsecutive periods) working:

 (i) for the employer who made the nomination to which the visa application relates; and

 (ii) in the nominated occupation to which the visa application relates;

(b) at almost all times during those 3 years, the person held:

 (i) a Subclass 444 (Special Category) visa; or

 (ii) a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa.

Subclass 457/482 coronavirus concession worker, in relation to an application for a visa, means a person in relation to whom all of the following paragraphs apply:

(a) at all times during the 3 years ending immediately before the day the visa application was made, the person was employed:

 (i) by the employer who made the nomination to which the visa application relates; and

 (ii) in the nominated occupation to which the visa application relates;

(b) the person’s employment was affected by a coronavirus employment change;

(c) for each of those 3 years that did not include any part of the concession period, the person’s earnings for the year were equal to or greater than the high income threshold (as applying at the end of the year);

(d) for each of those 3 years that included any part of the concession period, the person’s earnings for the year (excluding any earnings in a week when the person’s employment was affected by a coronavirus employment change) were equal to or greater than the prorata threshold;

(e) at almost all times during those 3 years, the person held:

 (i) a Subclass 457 (Temporary Work (Skilled)) visa; or

 (ii) a Subclass 482 (Temporary Skill Shortage) visa.

Subclass 457/482 worker, in relation to an application for a visa, means a person in relation to whom all of the following paragraphs apply:

(a) at all times during the 3 years ending immediately before the day the visa application was made, the person was employed:

 (i) by the employer who made the nomination to which the visa application relates; and

 (ii) in the nominated occupation to which the visa application relates;

(b) for each of those 3 years, the person’s earnings for the year were equal to or greater than the high income threshold (as applying at the end of the year);

(c) at almost all times during those 3 years, the person held:

 (i) a Subclass 457 (Temporary Work (Skilled)) visa; or

 (ii) a Subclass 482 (Temporary Skill Shortage) visa.

transitional 457 worker under 50, in relation to an application for a visa (the new visa), means a person who:

(a) on 18 April 2017:

 (i) held a Subclass 457 (Temporary Work (Skilled)) visa; or

 (ii) was an applicant for a Subclass 457 (Temporary Work (Skilled)) visa that was subsequently granted; and

(b) on the day the application for the new visa was made, had not turned 50.

working: a person is not working for an employer at a time if the person is on unpaid leave at that time.

5A Coronavirus employment change

  A person’s employment is affected by a coronavirus employment change at a time if:

(a) the time occurs during the concession period; and

(b) at that time, the person is, because of the coronavirus known as COVID19:

 (i) required to work at a reduced salary; or

 (ii) required to work reduced hours; or

 (iii) required to work parttime; or

 (iv) unable to work fulltime; or

 (v) stood down.

Part 2 Exemptions from skill, age and English language requirements

6 Subclass 186 visas

Temporary Residence Transition stream—exemption from age requirement

 (1) For the purposes of paragraph 186.221(b) of Schedule 2 to the Regulations, the following classes of persons are specified:

(a) academic applicants;

(aa) legacy 457 workers;

(b) regional medical practitioner applicants;

(c) science applicants;

(d) Subclass 457/482 workers;

(da) Subclass 457/482 coronavirus concession workers;

(e) transitional 457 workers under 50.

Direct Entry stream—exemption from age and skills requirements

 (2) For the purposes of paragraph 186.231(b) and subclause 186.234(3) of Schedule 2 to the Regulations, the following classes of persons are specified:

(a) academic applicants;

(b) science applicants;

(c) Subclass 444/461 workers.

7 Subclass 187 visas—Temporary Residence Transition stream

Exemption from age requirement

 (1) For the purposes of paragraph 187.221(b) of Schedule 2 to the Regulations, the following classes of persons are specified:

(a) academic applicants;

(b) regional medical practitioner applicants;

(c) science applicants;

(d) Subclass 457/482 workers;

(da) Subclass 457/482 coronavirus concession workers;

(e) transitional 457 workers under 50.

Exemption from English language requirement

 (2) For the purposes of paragraph 187.222(b) of Schedule 2 to the Regulations, a class of persons is specified in relation to an application for a Subclass 187 (Regional Sponsored Migration Scheme) visa if, on the day the visa application was made, the persons had completed at least 5 years of fulltime study in a secondary or higher education institution where all tuition was delivered in English.

8 Subclass 494 visas—Employer Sponsored stream

Exemption from age requirement

 (1) For the purposes of subclause 494.223(2) of Schedule 2 to the Regulations, applicants are not required to have been under 45 for the purposes of Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visas in the Employer Sponsored stream in any of the following circumstances:

(a) the applicants are academic applicants;

(b) the applicants are regional medical practitioner applicants;

(c) the applicants are science applicants;

(d) the applicants are Subclass 444/461 workers;

(e) the applicants are Subclass 457/482 workers.

Exemption from skills and employment history requirements

 (2) For the purposes of subclause 494.224(7) of Schedule 2 to the Regulations, the requirements of subclauses 494.224(2) to (5) of that Schedule are not required to have been met for the purposes of Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visas in the Employer Sponsored stream in either of the following circumstances:

(a) the applicants are academic applicants;

(b) the applicants are Subclass 444/461 workers.

 (3) For the purposes of subclause 494.225(2) of Schedule 2 to the Regulations, applicants are not required to have been employed as mentioned in paragraph 494.225(1)(a) of that Schedule for the purposes of Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visas in the Employer Sponsored stream in either of the following circumstances:

(a) the applicant is an academic applicant;

(b) the applicant is a Subclass 444/461 worker.


Part 3 Application and transitional provisions

9 Application of this instrument

  This instrument applies in relation to an application for a visa made on or after 16 November 2019.

10 Transitional provision—designated regional areas

  For the purposes of this instrument, an area that was located in regional Australia (within the meaning of subregulation 5.19(16) of the Regulations) at a time occurring before 16 November 2019 is taken to have been located in a designated regional area at that time.

11 Operation of Schedule 1 to the Migration (Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Amendment Instrument (LIN 20/189) 2020

  The amendments of this instrument made by items 3 and 4 of Schedule 1 to the Migration (Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Amendment Instrument (LIN 20/189) 2020 apply in relation to applications made on or after the commencement of those items.

Notes

This compilation comprises Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019 amended as indicated in the following tables.

Table of instruments

Name

Registration

Number

Commencement

Application, saving or transitional provisions

Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019

31 October 2019

F2019L01404

16 November 2019

section 9, section 10

Migration (Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Amendment Instrument (LIN 20/189) 2020

23 November 2020

F2020L01447

24 November 2020

section 11

Migration (Age exemption for subclass 186 (Employer Nomination Scheme) visa) Amendment Instrument (LIN 22/047) 2022

4 April 2022

F2022L00515

1 July 2022

-

Table of amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

Provision affected

How affected

section 2..............

rep. Legislation Act 2003, s. 48D

section 4..............

rep. Legislation Act 2003, s. 48C

section 5..............

am. F2020L01447

am. F2022L00515

section 5A.............

ad. F2020L01447

section 6..............

am. F2020L01447

am. F2022L00515

section 7..............

am. F2020L01447

Part 3 heading..........

rs. F2020L01447

section 11.............

ad. F2020L01447

Schedule 1............

rep. Legislation Act 2003, s. 48C